1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, serving seven years, ten months and two enlistments of faithful and spotless service. When the applicant deployed the spouse took the kids to Utah. Paperwork for divorce was filed while the applicant was in Afghanistan; however, the paperwork could not be completed until after the applicant returned. After returning from deployment, the applicant started slipping into deep depression, to the point where the applicant sought help at Behavioral Health, where the psychologist said the applicant might have mild PTSD, and prescribed sleeping pills and antidepressants. The divorce was finalized, and the applicant had not seen the kids in years, and the depression worsened. The applicant made the worst choice of their military career by taking a can of ammo as a souvenir. The applicant had the can for a period, then thought better of it and was scared to return it so again made another bad decision and figured since it was the same kind of ball ammunition found online, the applicant figured maybe someone would buy it and use it for range ammo. The applicant was contacted by CID and confessed to having it, and returned it, however, was not honest about how the applicant acquired it. The applicant's defense attorney was new and had only been practicing for ten months. The applicant knew nothing about the process, and the attorney informed the applicant since they had already confessed to everything, the best choice was to now request a Chapter 10 with an honorable discharge based off the applicant's character of service. Except for one lapse in judgement, the applicant has never had any sort of negative action. b. Board Type and Decision: In a records review conducted on 20 June 2023, and by a 5-0 vote, the Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to General, Under Honorable Conditions. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 2 April 2014 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): On 3 January 2014, the applicant was charged with: Charge I: Violating Article 121, UCMJ. The Specification: On or about 10 September 2013, steal 114 rounds of .50 caliber ammunition, military property, of a value of about $364. Charge II: Violating Article 80, UCMJ. The Specification: On or about 19 September 2013 and on or about 24 September 2013, attempt to, without proper authority, sell through a posting on Facebook, 100 rounds of .50 caliber ammunition of a value of about $320, military property of the United States. Charge III: Violating Article 107, UCMJ. The Specification: On or about 17 October 2013, with intent to deceive, make to Special Agent J. G. III., and official statement, which statement was totally false, and was then known by the applicant to be false. (2) Legal Consultation Date: 28 January 2014 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 24 February 2014 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 April 2011 / NIF / The applicant's AMHRR is void of a DD Form 4; however, the applicant provided a copy of oath of reenlistment certificate. b. Age at Enlistment / Education / GT Score: 25 / GED / 116 c. Highest Grade Achieved / MOS / Total Service: E-5 / 15J20, OH-58D Armament / Electrical Systems Repairer / 8 years, 2 months, 27 days d. Prior Service / Characterizations: RA, 4 January 2006 - 24 April 2011 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (12 March 2009 - 12 October 2009; 26 April 2011 - 7 October 2011) f. Awards and Decorations: ACM-3CS, ARCOM, AAM-2, AGCM-2, NDSM, GWOTSM, KDSM, NCOPDR, ASR, OSR, NATOMDL, CAB g. Performance Ratings: 1 September 2012 - 31 January 2013 / Fully Capable 1 February 2013 - 7 November 2013 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: CID Report of Investigation - 1st Corrected Final, dated 24 October 2013, investigation established probable cause to believe the applicant committed the offense of Larceny of Government Property and False Official Statement when the applicant stole 100 rounds of .50 caliber ammunition and subsequently provided a false statement concerning the details of the larceny. CPT S. S., Trial Counsel, OSJA, FDNY, concurred probable cause existed to believe the applicant committed Larceny of Government Property and False Official Statement. AR 15-6 Investigation Findings and Recommendations, dated 7 November 2013, reflects the applicant did steal .50-caliber ammunition while in preparation for a .50 cal range; did attempt to sell the ammunition on Facebook; and, provided a false official statement about acquiring the ammunition in 2008 while at Fort Bragg. Charge Sheet as described in paragraph 3c(1). i. Lost Time / Mode of Return: 1 day (NIF, 25 April 2012 - 26 April 2012) / NIF j. Behavioral Health Condition(s): (1) Applicant provided: Psychological Evaluation, undated, reflects the applicant meets criteria for a PTSD (F43.10) diagnosis. The data of this evaluation cannot of course demonstrate whether the applicant was suffering from initial symptoms of PTSD at the time of the mental health treatment in the Army or at the time of demotion and discharge. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: Online Application; psychological evaluation; honorable discharge certificate; oath of reenlistment certificate; DD Form 214; certificate of promotion; ARCOM certificate; two AAM certificates; Golden Spur certificate; AGCM certificate; certificate of appreciation; certificate of achievement; Warrior Leader Course certificate. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under Other Than Honorable Conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The evidence in the applicant's Army Military Human Resource Record (AMHRR) confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel, voluntarily requested, in writing, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court- martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense, and indicated an understanding an under other than honorable conditions discharge could be received, and the discharge would have a significant effect on eligibility for veterans' benefits. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends good service, including two combat tours. The applicant contends the event, which led to the discharge from the Army, was an isolated incident. Army Regulation 635-200, paragraph 3-5c states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends family issues affected behavior and ultimately caused the discharge. There is no evidence in the AMHRR the applicant ever sought assistance before committing the misconduct, which led to the separation action under review. The applicant contends after returning from deployment, the applicant started slipping into deep depression, and sought help at Behavioral Health, where the psychologist said the applicant might have mild PTSD, and prescribed medication. The applicant provided a copy of Psychological Evaluation, undated, which suggested the applicant met the criteria for a PTSD (F43.10) diagnosis. The data of this evaluation cannot demonstrate whether the applicant was suffering from initial symptoms of PTSD at the time of the mental health treatment in the Army or at the time of demotion and discharge. The AMHRR does not contain a mental status evaluation (MSE). The applicant contends the attorney was new and had only been practicing for ten months. The applicant knew nothing about the process, and the attorney informed the applicant since they had already confessed to everything, the best choice was to now request a Chapter 10 with an honorable discharge based off the applicant's character of service. The applicant's AMHRR does not contain any indication or evidence of arbitrary or capricious actions by the command. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: PTSD and asserted Depression, which may be sufficient evidence to establish the existence of a condition that could mitigate or excuse the discharge. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found applicant is service connected for PTSD and has asserted depression, which is a commonly occurring co-morbid condition with PTSD and is supported by evidence in the applicant's active-duty record. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The Board's Medical Advisor applied liberal consideration and opined that applicant's PTSD and asserted Depression do not mitigate the applicant's offenses of larceny/theft, attempt to sell military equipment, and false official statement because PTSD and associated Depression do not impair one's ability to differentiate right from wrong and adhere to the right, and there is no nexus between such conditions and the larceny/theft, attempts to sell military equipment, and associated false official statements leading to his discharge. (4) Does the condition or experience outweigh the discharge? No. After applying liberal consideration to the evidence, including the Board Medical Advisor opine, the Board determined that the available evidence did not support a conclusion that the applicant's PTSD and asserted Depression outweighed the medically unmitigated basis for applicant's separation - theft of ammunition, attempted sale of stolen military property, and false official statement. b. Response to Contention(s): (1) The applicant contends the narrative reason for the discharge needs changed. The Board considered this contention and determined that the applicant was properly separation, per the applicant's request, under the provisions of Chapter 10, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation. However, based on the applicant's length and quality of service, to include combat service, the Board voted to change the applicant's characterization of service to General, Under Honorable Conditions. It appears that the HD upgrade is not warranted because the applicant's misconduct renders the applicant's service as less than meritorious service required for HD. (2) The applicant contends good service, including two combat tours. The Board found validity in this contention, and based on the applicant's length and quality of service mitigating the discharge, the Board voted to change the applicant's characterization of service to General, Under Honorable Conditions. However, the Board determined that HD upgrade is not warranted because the applicant's misconduct renders the applicant's service as less than meritorious service required for HD. (3) The applicant contends the event, which led to the discharge from the Army, was an isolated incident. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's length and quality of service, to include combat service mitigating the basis for separation. The Board determined that HD upgrade is not warranted because the applicant's misconduct renders the applicant's service as less than meritorious service required for HD. (4) The applicant contends family issues affected behavior and ultimately caused the discharge. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the applicant's length and quality of service, to include combat service, mitigating the basis for separation. The Board determined that HD upgrade is not warranted because the applicant's misconduct renders the applicant's service as less than meritorious service required for HD. (5) The applicant contends after returning from deployment, the applicant started slipping into deep depression, and sought help at Behavioral Health, where the psychologist said the applicant might have mild PTSD, and prescribed medication. The Board considered this contention and the applicant's PTSD, and determined that there is no nexus between the applicant's BH condition and the nature and severity of the applicant's misconduct of theft of ammunition, attempted sale of stolen military property, and false official statement. However, the Board determined relief was warranted in the form of an upgrade of the characterization of service to General, Under Honorable Conditions based on the length and quality of the applicant's service record. The Board determined that HD upgrade is not warranted because the applicant's misconduct renders the applicant's service as less than meritorious service required for HD. (6) The applicant contends the attorney was new and had only been practicing for ten months. The applicant knew nothing about the process, and the attorney informed the applicant since they had already confessed to everything, the best choice was to now request a Chapter 10 with an honorable discharge based off the applicant's character of service. The Board considered this contention and determined there was insufficient evidence provided by the applicant of ineffective that prejudiced the applicant, or of any arbitrary or capricious action taken by the Command during separation proceedings. However, the Board determined the discharge is now inequitable and relief is warranted in the form of an upgrade of the characterization of service to General, Under Honorable Conditions based on the length and quality of the applicant's service record. The Board determined that HD upgrade is not warranted because the applicant's misconduct renders the applicant's service as less than meritorious service required for HD. c. The Board determined that the characterization of service was inequitable based on the applicant's length and quality of service, to include combat service, warranting a partial upgrade. However, the applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to General, Under Honorable Conditions based on the applicant's length and quality of service mitigating the basis for applicant's separation - theft of ammunition, attempted sale of stolen military property, and false official statement. Thus, the prior characterization is no longer appropriate. However, the Board found an upgrade to Honorable not supported by the evidence of record. The Honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of accept conduct and performance of duty or is otherwise meritorious that any other characterization would be clearly inappropriate. While the Board found that a partial upgrade was warranted, after a review of the totality of the record, the Board determined that the applicant's service was not sufficiently meritorious to warrant an Honorable discharge due to the unmitigated misconduct of theft of ammunition, attempted sale of stolen military property, and false official statement. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code, and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210001831 1